Bibo v. Bibo

• Decision Date: 18 September 1947
• Docket Number: No. 30014.,30014.
• Citation: 74 N.E.2d 808,397 Ill. 505
• Parties: BIBO et al. v. BIBO.
• Court: Illinois Supreme Court

397 Ill. 505

74 N.E.2d 808

BIBO et al.

v.BIBO.

No. 30014.

Supreme Court of Illinois.

Sept. 18, 1947.

Appeal from Circuit Court, Edgar County; George W. Bristow, judge.

Action by Elizabeth Bibo and others against Myrtle F. Bibo, individually, and as executrix of the will of Max S. Bibo, deceased, to have title to realty which had been conveyed to Max S. Bibo, deceased, by Elizabeth Bibo and Philip Bobo, deceased, declared to be in plaintiffs, on ground that deeds granted an estate tail which by operation of statute was converted into a life estate in Max S. Bibo, deceased, with remainder in fee to his heirs, wherein Myrtle F. Bibo filed a counterclaim. From a decree in favor of the plaintiffs, the defendant appeals.

Decree affirmed.

Lawrence B. Moore, of Paris, for appellant.

Cotton, Massey & Mimz, of Paris (Robert F. Cotton and Harold E. Mimz, both of Paris, of counsel), for appellees.

MURPHY, Chief Justice.

This is an appeal from a decree entered in the circuit court of Edgar county. It determines the ownership of the title to certain lands located in that county. On and prior to January 25, 1921, Philip Bibo owned the premises involved. On that date, he and his wife executed a statutory form of warranty deed conveying a part of the tracts to Max S. Bibo. Eight days later they executed a second deed, identical with the first, except as to date and description, conveying the remainder of the tracts to the same grantee. The granting clauses were as follows: ‘Convey and warrant to Max S. Bibo and his bodily heirs of Paris, in the county of Edgar and state of Illinois, the following described real estate,’ etc. The deeds contained no habendum.

Philip S. Bibo died testate on June 3, 1928. His wife, Elizabeth Bibo, survived and was the sole beneficiary of the will. Four sons, one of whom was the grantee, Max S. Bibo, and one daughter were his only heirs-at-law. At the time the deeds were executed Max S. Bibo was married to Myrtle F. Bibo. He died testate July 23, 1944, without having had any bodily heirs. Myrtle F. Bibo survived and was the sole beneficiary in the will of her husband.

Elizabeth Bibo and the heirs-at-law of Philip Bibo started this action against Myrtle F. Bibo, in her individual capacity and as executrix of the will of Max S. Bibo, to have the title to the premises decreed to be in Elizabeth Bibo. Such action was founded on the theory that the deeds granted an estate tail as at common law, which, by operation of section 6 of the Conveyance Act, Ill.Rev.Stat.1945, chap. 30, par. 5, was converted into a life estate in Max S. Bibo, with remainder in fee to his bodily heirs. Since Max S. Bibo had no bodily heirs, it is contended the remainder passed under the will of Philip Bibo to the sole beneficiary, Elizabeth Bibo.

Myrtle F. Bibo asserted her claims to the property by answer and counterclaim. She contended the conveyance to Max S. Bibo and his bodily heirs, of Paris, in the county of Edgar, State of Illinois, was the conveyance of a present estate and since there was no one in existence to take as bodily heirs, the conveyance was void as to them, thereby resulting in Max S. Bibo taking the full title in fee. If such contention finds support in the law, then Myrtle F. Bibo would, as the sole beneficiary of the will of Max S. Bibo, take the fee-simple title to all the lands. An alternative to the foregoing is urged on behalf of Myrtle F. Bibo. It is said that if it should be determined that the deeds granted estates tail as at common law, which section 6 of the Conveyance Act converted into life estates in Max S. Bibo with remainder in his bodily heirs, then upon failure of bodily heirs to Max S. Bibo, the contingent remainder became vested in those persons who were the heirs-at-law of Philip Bibo at the time of his death. Max S. Bibo being one of five of such heirs, it is contended that Myrtle F. Bibo became the owner of such one-fifth as the sole beneficiary of the will of her husband.

The chancellor sustained the construction urged by Elizabeth Bibo and her coplaintiffs, and entered a decree vesting the full fee-simple title in her. Myrtle F. Bibo has appealed from such decree.

The question presented is one of construction. The primary rule in construing a deed is to ascertain the intent of the grantor and to give effect to such intent if not in conflict with some rule of law. If Philip Bibo had intended to grant Max S. Bibo the full title, then by the use of the statutory form of warranty deed, his grant would have been to Max S. Bibo, or if the grant had been to Max S. Bibo and his heirs generally, then by application of rules of law the result would have been the same and the grantee would have taken the full title. But the grant runs to Max S. Bibo and his bodily heirs. The primary question is as to whether the words ‘his bodily heirs' are words of purchase, that is, describing the persons who were to take as grantees with Max S. Bibo, or are words of limitation, that is, do they limit the estate of the first taker and create an estate tail as at common law? If the words are to be construed as words of limitation, then at common law an estate was created in the bodily heirs of Max S. Bibo which would have continued in direct line so long as his posterity endured, and in regular order and course of descent and until there was an extinction of such issue. If the words ‘and his bodily heirs' are words of purchase, then the grant as to such class is a nullity for there were no bodily heirs of Max S. Bibo in existence when the conveyances were made. It is fundamental that such requirement is essential to the passing of title of a present estate. Appellant's claim that she has the whole title is founded on such theory.

If a grantor employs words which have a definite legal significance in the law of real property, then it is presumed that the grantor intended that such technical words should be given their special significance. The word ‘heirs' is a technical word, clothed in the law of real property with a special significance. At common law, to create an estate of inheritance it was necessary that the grant or donation contain the word ‘heirs.’ If such word was omitted and the grant was to A, then A took only a life estate. Sauls v. Cox, 394 Ill. 81, 67 N.E.2d 187; Blackstone's Commentaries, Book 2, page 108. This rule applied to estates tail as well as to estates of general inheritance. To create an estate tail there was the additional requirement that there must be words of procreation, that is to say, words indicating the body out of which the heirs were to issue or by whom they were to be begotten. Lehndorf v. Cope, 122 Ill. 317, 13 N.E. 505.

There is no doubt that at common law the meaning that would have been attached to the words ‘Max S. Bibo and his bodily heirs' was that an estate tail was created. The words ‘and his bodily heirs' were at common law the simplest way of creating estates tail. In many cases where the words ‘the heirs of his body’ or ‘his bodily heirs' have been used, it has been held that an estate tail was created. Sauls v. Cox, 394 Ill. 81, 67 N.E.2d 187;Hickox v. Klaholt, 291 Ill. 544, 126 N.E. 166;Coogan v. Jones, 278 Ill. 279, 115 N.E. 877;Moore v. Reddel, 259 Ill. 36, 102 N.E. 257;Metzen v. Schopp, 202 Ill. 275, 67 N.E. 36;Kyner v. Boll, 182 Ill. 171, 54 N.E. 925;Welliver v. Jones, 166 Ill. 80, 46 N.E. 712;Lehndorf v. Cope, 122 Ill. 317, 13 N.E. 505;Frazer v. Board of Supervisors, 74 Ill. 282;Blair v. Vanblarcum, 71 Ill. 290;Butler v. Huestis, 68 Ill. 594, 18 Am.Rep. 589.

In support of the contention that the words ‘his bodily heirs' are descriptive of the persons to take, appellant contends that this court has adopted the doctrine that such words, standing alone, are prima facie words of purchase. If such were the rule, the grant to Max S. Bibo and his bodily heirs would be presumed to have been used as descriptive of the persons to take. Such contention does not find support in the law. It is fundamental that courts favor constructions which vest estates at the earliest moment and there are statements in the books that estates tail are not favored in the law. The legislative policy of this State, as evidenced by section 6, was to abolish estates tail as they were known at the common law, but it will be observed that the application of section 6 depends on whether an estate has been created which would, at common law, have been an estate tail. To say that courts disfavor a construction which finds an estate tail has been created is, in effect, to say that courts are averse to finding the estate upon which section 6 depends for its application.

Appellant cites Hauser v. Power, 356 Ill. 521, 191 N.E. 64, and Albers v. Donovan, 371 Ill. 458, 21 N.E.2d 563, and refers to language in the opinions which, when separated from the context, tends to support her contention. The part of the opinion in the Hauser Case to which appellant refers and which is repeated in the Donovan case is: ‘Under present-day conditions, with estates tail abolished and no longer capable of creation under our statute, the tendency is to consider the words ‘heirs of the body’ and to construe them, prima facie at least, as words of purchase rather than as words of limitation.' (356 Ill. 521, 191 N.E. 66.) It will be noted that...